Ramos-Gutierrez v. Garland

110 F.4th 1

• Court: Court of Appeals for the First Circuit
• Decided: July 18, 2024
• Docket: 23-1885
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1885

FRANKLIN MANAEN RAMOS-GUTIERREZ,

Petitioner,

v.

MERRICK B. GARLAND, United States Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Gelpí, Lynch, and Montecalvo, Circuit Judges.

Robert M. Warren on brief for petitioner. Lindsay Corliss, Trial Attorney, Office of Immigration Litigation, Civil Division, Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and John S. Hogan, Assistant Director, Office of Immigration Litigation, U.S. Department of Justice, on brief for respondent.

July 18, 2024 LYNCH, Circuit Judge. Franklin Manaen Ramos-Gutierrez

of El Salvador petitions for review of a decision of the Board of

Immigration Appeals ("BIA") affirming an immigration judge's

("IJ") order denying his application for asylum and withholding of

removal under sections 208(b)(1)(A) and 241(b)(3)(A) of the

Immigration and Nationality Act, 8 U.S.C. §§ 1158(b)(1)(A),

1231(b)(3)(A), as well as relief under the Convention Against

Torture ("CAT"), 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1); see

also Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, Art. 3, Dec. 10, 1984, S. Treaty

Doc. No. 100-20, 1465 U. N. T. S. 114.

The BIA upheld the IJ's denial of relief, finding, inter

alia, that the petitioner had failed to establish the requirements

for asylum (and accordingly for withholding of removal) in that

(1) the petitioner's claimed particular social groups -- "young

person who has been beaten and threatened by gangs" and "young

individual in the country who's been targeted for gang recruitment"

-- were not cognizable and (2) the petitioner failed to demonstrate

the requisite nexus between the harm alleged and either a

cognizable particular social group or a political opinion.

Substantial evidence supports the IJ's factual findings,

and the BIA committed no errors of law as to several grounds each

independently sufficient to deny relief. We deny the petition for

review.

- 2 - I.

A.

The petitioner entered the United States in 2013 and was

served with a Notice to Appear on April 27, 2013, charging him

with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). The

petitioner filed an application for asylum, withholding of

removal, and protection under CAT on August 27, 2013. At an

initial hearing before an IJ on the same day, the petitioner

appeared with counsel and conceded his removability. The

petitioner later appeared before the IJ on December 18, 2018,

represented by counsel, where he testified as the sole witness.

The IJ found the petitioner to be credible.1

We describe the facts as found by the IJ after a hearing

on December 18, 2018, including from the petitioner's testimony

before the IJ. At the time of the hearing, the petitioner was a

twenty-four-year-old native and citizen of El Salvador. He

completed up to the ninth grade in school, and he married in El

Salvador, where his wife, parents, and four brothers live.2

1 At the time that the petitioner entered the United States, he represented that he was a juvenile, but the Department of Homeland Security later discovered that he was twenty-three years old. The IJ noted that "the department did raise some issues with respect to the [petitioner's] statements to the border patrol upon arrival," but the IJ "[did] not believe that these are sufficient to warrant an adverse credibility finding[.]"

2 The petitioner has a four-year-old child who was born in the United States and is a citizen.

- 3 - While living in Chalatenango, El Salvador before 2013,

the petitioner experienced harassment from members of a gang called

"Pandilla Sin Ley," which was part of the larger "MS and 18th

Street" gang.3 The gang harassing the petitioner consisted of

several people, and one of the primary harassers was "Melvin."

The gang "was threatening everyone and everyone knew about them,"

and "[e]veryone in the village where the [petitioner] lived knew

about them."

The harassment began in 2009 when the petitioner was

fifteen and still in school in the La Lomita area where the

petitioner and his family lived. Petitioner was asked to join the

gang, he refused, and gang members beat him. The petitioner told

his parents about the incident, and the family went to the police;

however, the police took no notice. Members of the gang beat up

the petitioner a second and then a third time, when the petitioner

was hit with a pistol. Following the third beating, the

petitioner's older brother again went to the police. The police

searched for and found Melvin, but did not arrest him. The police

gave the petitioner "an appointment to go in front of [a] judge on

May 12, 2010." During the court hearing, Melvin "admitted what

happened" and "left the court laughing." The judge "said that she

was going to order Melvin" to pay the petitioner fifty dollars.

3 "Sin Ley" is Spanish for "lawless."

- 4 - Melvin never paid. The gang "tried to beat up" the petitioner

again after this hearing, but he moved an hour and a half away to

his grandmother's house. While he was living with his grandmother,

members of the group came looking for him at his mother's

residence.

In 2013, three years after he moved to live with his

grandmother, the petitioner left El Salvador and entered the United

States without inspection. At the time of the hearing before the

IJ, the petitioner communicated with his mother via phone every

three days. For a time, gang members were asking about him every

three days. The petitioner believed that the last time the gang

had asked about the petitioner was about a year ago. The

petitioner has been able to access Melvin's Facebook page and find

pictures of him with weapons.4

The IJ denied the petitioner's applications and ordered

the petitioner removed to El Salvador. The IJ found that the

petitioner did not meet the criteria for asylum for several

reasons, including that the petitioner had not claimed membership

in any "valid particular social group." The IJ determined that

4The record is unclear as to when exactly the petitioner accessed Melvin's Facebook page, although it seems to have been close to the 2018 removal hearing: the petitioner testified, "[t]hese are photographs that we found in Facebook where he displays all his guns and weapons" and "[t]he reason why I used [these photos] and I take this is because the weapon or the gun that is in the photographs is similar to the ones he used when he attacked me."

- 5 - the petitioner's first claimed particular social group, a "person

or young person who has been beaten and threaten[ed] by the gangs,"

was not a valid particular social group because it was

"impermissibly circular" and "defined by the harm which is included

in its definition." As to the petitioner's second claimed

particular social group, "a young individual in the country who's

been targeted for gang recruitment," the IJ "relie[d] on Matter of

S-E-G-[, 24 I. & N. Dec. 579 (B.I.A. 2008)] and [Matter of] E-A-

G-[, 24 I. & N. Dec. 591 (B.I.A. 2008)] to find" that the group

was "too amorphous" and "not valid enumerated grounds."

The IJ further concluded that the petitioner had failed

to demonstrate the required nexus between the gang's actions and

the petitioner's claimed particular social groups or any political

opinion. First, the IJ determined that "[w]ith respect to the

political opinion that the gangs are quasi government force[s]

which prevent the [petitioner] from living in peace in opposition

to them, the Court will once again rel[y] on S-E-G and E-A-G to

find that this is not a valid political opinion." The IJ found

that the gang's targeting of the petitioner "was a criminal act in

which [the gang] attempted to coerce through threats and extortion

the [petitioner] to join the gang," and that the gang "did this to

everyone else in the vicinity and that everyone knew about it."

"Thus, the [petitioner] was not targeted by the gangs due to any

particular characteristics or any membership in any groups or any

- 6 - political [opinions] that he had." Additionally, the IJ noted

that "the Attorney General's decision in Matter of A-B-, 27 I. &

N. Dec. 316 (A.G. 2018) stands for the proposition that generalized

violence in the context of domestic violence and gang violence

would generally not form a basis for asylum in the United States."

The IJ concluded that "[t]he facts of this case clearly follow

those outlined in Matter of A-B- and thus do not qualify for

asylum."5 The IJ also noted that the petitioner had failed to show

either ineffectiveness by the government of El Salvador or that

the government condones the activities at issue.

The IJ also denied the withholding of removal claim,

which would require meeting a higher bar than the petitioner's

asylum claim. As to the CAT claim, the IJ denied relief because

the petitioner had not shown that he "would be tortured by anyone

in []his home country."

The petitioner appealed to the BIA, arguing through

counsel that the IJ had erred (1) because he relied upon a

then-vacated Attorney General opinion, Matter of A-B-, 27 I. & N.

Dec. 316 (A.G. 2018) (A-B-I), and (2) in finding that the

petitioner had not shown that he was subject to persecution on the

basis of membership in a particular social group or political

5 The Attorney General issued two Matter of A-B- decisions: Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018) ("A- B-I") and Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021) ("A-B- II"). The IJ cited A-B-I and did not cite A-B-II.

- 7 - opinion. The petitioner did not challenge the IJ's determination

that he failed to establish that the government was unwilling or

unable to protect him, nor did he challenge the IJ's denial of his

CAT request.6

The BIA affirmed: the claimed particular social groups

were not legally cognizable because "they [we]re impermissibly

circular and too amorphous to be particularly defined." The BIA

likewise affirmed the IJ's determination that the petitioner "did

not establish that any harm he experienced or fears bears a nexus

to an actual or imputed political opinion, or any protected

ground." The BIA "discern[ed] no clear error in the [IJ's]

findings" "that gang members targeted and harmed the [petitioner]

in an attempt to force or coerce him to join the gang[,] . . .

that the gangs threatened everyone in the vicinity and everyone

knew about them" (citations omitted), and "that the gang

perpetrates generalized criminal activity and violence." Citing

Matter of S-E-G- and Matter of E-A-G-, the BIA further noted that

it could "discern [no record evidence] that reflects that the

[petitioner's] opposition to the gang was perceived or imputed by

the gang as an anti-gang/anti-government political opinion" and

6 At the conclusion of his brief, the petitioner did "request[] that the Court grant his applications for political asylum, withholding of removal and withholding of removal pursuant to [CAT]." Because the petitioner did not address the issue beyond this cursory request, the BIA correctly deemed the issue waived.

- 8 - that "[t]he record does not reflect that the [petitioner] had a

political motive in resisting gang recruitment and he has not

identified any evidence in the record reflecting that he was

politically active or made any anti-gang/anti-government political

statements[.]"

As to Matter of A-B-, the BIA determined that "[t]he

record d[id] not reflect that the [IJ] relied on [A-B-I] in his

cognizability analysis," that the IJ's "findings and conclusion

[we]re otherwise supported by controlling law and precedent

decisions," and that the IJ's "conclusion ha[d] not been

meaningfully rebutted on appeal." The BIA concluded that the

petitioner had waived both any challenge to the IJ's denial of his

CAT request and any argument that the government was unable or

unwilling to protect him.

II.

We review the BIA's conclusions of law de novo. Romilus

v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004). Where the BIA "adopts

and affirms the IJ's ruling" and also "'examines some of the IJ's

conclusions,' we review both the BIA and IJ opinions as a unit."

Barnica-Lopez v. Garland, 59 F.4th 520, 527 (1st Cir. 2023)

(quoting Gómez-Medina v. Barr, 975 F.3d 27, 31 (1st Cir. 2020)).

We apply the deferential "substantial evidence standard" to the

IJ's factual findings, which "requires us to accept the [IJ's]

factual findings . . . unless the record is such as to compel a

- 9 - reasonable factfinder to reach a contrary conclusion." Dorce v.

Garland, 50 F.4th 207, 212 (1st Cir. 2022) (emphasis and omission

in original) (quoting Mazariegos-Paiz v. Holder, 734 F.3d 57, 64

(1st Cir. 2013)); see INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1

(1992) ("To reverse the BIA finding we must find that the evidence

not only supports that conclusion, but compels it.").

III.

In order to succeed on an asylum application, a

petitioner "must 'demonstrate a well-founded fear of persecution

on one of five protected grounds' -- race, religion, nationality,

political opinion or membership in a particular social group."

Paiz-Morales v. Lynch, 795 F.3d 238, 243 (1st Cir. 2015) (quoting

Singh v. Holder, 750 F.3d 84, 86 (1st Cir. 2014)); see 8 U.S.C.

§§ 1101(a)(42), 1158(b)(1)(B)(i). A petitioner must demonstrate

that one of the five protected grounds is at least "one central

reason for the harm alleged." Barnica-Lopez, 59 F.4th at 528

(quoting Sanchez-Vasquez v. Garland, 994 F.3d 40, 47 (1st Cir.

2021) (internal quotations omitted)); 8 U.S.C. § 1158(b)(1)(B)(i);

see Elias-Zacarias, 502 U.S. at 482-83.

Substantial evidence supports the BIA and IJ's

determination that the petitioner failed to demonstrate membership

in a valid particular social group. An applicant for asylum or

withholding of removal based on membership in a particular social

- 10 - group "must establish that the group is: (1) composed of members

who share a common immutable characteristic, (2) defined with

particularity, and (3) socially distinct within the society in

question." Cruz v. Garland, ___ F.4th ___, No. 23-1910, 2024 WL

3249628, at *1 (1st Cir. July 1, 2024)(quoting Espinoza-Ochoa v.

Garland, 89 F.4th 222, 231 (1st Cir. 2023)). A particular social

group also "must exist independent of the persecution claimed to

have been suffered" in order to be valid. Perez-Rabanales v.

Sessions, 881 F.3d 61, 67 (1st Cir. 2018).

The petitioner's first claimed particular social group,

a young person who has been beaten and threatened by gangs, was

impermissibly circular. As the BIA and IJ correctly held, this

claimed particular social group does not exist independently of

the alleged persecution: rather, the fact of persecution is what

defines it. The BIA and IJ also did not err in concluding that

the petitioner's second claimed particular social group, a young

individual in the country who has been targeted for gang

recruitment, was amorphous. This Court has repeatedly rejected

near-identical groups and explained that resisting gang

recruitment does not create the kind of defined social group

contemplated under the asylum requirements. See, e.g., Larios v.

Holder, 608 F.3d 105, 109 (1st Cir. 2010) (determining that claimed

particular social group of "youth resistant to gang recruitment"

lacked social visibility and was insufficiently particular).

- 11 - Consistent with this binding precedent, the BIA and IJ did not err

in determining that the claimed particular social group is not

cognizable.

As to nexus, substantial evidence also supports the IJ's

finding that the petitioner was harassed due to the criminal

activity and recruitment strategies of the gang, and neither the

petitioner's membership in a group nor his political opinion were

a central reason the gang harassed him. Indeed, the petitioner

testified that the harassment began after the petitioner refused

to join the gang and that the gang was threatening "everyone" in

the area.

Petitioner argues to the court that the IJ disregarded

substantial relevant evidence. The record does not support the

argument, and the petitioner does not identify any specific

evidence that the IJ allegedly disregarded, let alone evidence

that compels contrary conclusions.7

We finally reject the petitioner's argument that his

case should be remanded based on a June 16, 2021, Order of Attorney

General Merrick Garland vacating the previous Attorney General

decisions A-B-I and A-B-II. The petitioner misleadingly claims

7 Since the petitioner's asylum claim fails on both of the particular social group and nexus issues, we need not reach the issue of whether the petitioner adequately showed that he either feared government or government-supported action, or that he feared an actor that the government was unable or unwilling to control.

- 12 - that the IJ found that the nexus and particular social group issues

were "foreclosed by [A-B-I]," and that remand would be appropriate.

Petitioner's argument mischaracterizes the record. As the BIA

correctly determined, the IJ did not rely on A-B-I. A-B-I did not

affect the outcome of this case, and remand is unwarranted.

B.

We turn next to the petitioner's application for

withholding of removal under 8 U.S.C. § 1231(b)(3). To succeed,

the petitioner "must show that, if returned to his homeland, he

would more likely than not be subject to persecution on account of

a statutorily protected ground." Amouri v. Holder, 572 F.3d 29,

35 (1st Cir. 2009). "A petitioner who cannot clear the lower

hurdle for asylum will necessarily fail to meet the higher bar for

withholding of removal." Paiz-Morales, 795 F.3d at 245. Here,

petitioner's asylum claim fails, so his withholding of removal

claim fails as well.

We turn last to the petitioner's application for

protection under CAT. We add that there was no evidence presented

here establishing that "more likely than not, []he will be tortured

if forced to return to h[is] homeland." Hincapie v. Gonzales, 494

F.3d 213, 220 (1st Cir. 2007); see 8 C.F.R. § 208.16(c)(2).

Similarly, the petitioner has waived any CAT claim by failing to

challenge the IJ's denial of CAT protection on appeal to the BIA.

- 13 - For the foregoing reasons, the petition for review of

the decision of the BIA is denied.

- 14 -